ORCHARD v. ALEXANDER. PIERCE V. FRACE.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

Section 2259, Rev. Stat., authorizes one possessed of certain personal qualifications, "who has made, or hereafter makes, a settlement in person on the public lands subject to preemption, and who inhabits and improves the same, and who has erected or shall erect a dwelling thereon," to enter not exceeding 160 acres. Section 2262 provides that before any person shall be allowed to enter lands he shall make oath before the register or receiver that he has never had the benefit of any right of preemption; that he is not the owner of 320 acres of land; that he has not settled upon and improved the land for speculation, but in good faith to appropriate it to his own exclusive use, and that he has not directly or indirectly made any agreement or contract by which the title which he is to acquire is to inure in whole or in part to any person except himself; and further that a false oath in these respects shall forfeit the money which he has paid and all right and title to the land. This oath is to be filed in the local land office and a duplicate thereof transmitted to the General Land Office. Section 2263 reads:

"Prior to any entries being made under and by virtue of the provisions of section twenty-two hundred and fifty-nine, proof of the settlement and improvement thereby required shall be made to the satisfaction of the register and receiver of the land district in which such lands lie, agreeably to such rules as may be prescribed by the Secretary of the Interior."

The contention of the plaintiff in that this last section authorizes a quasi-judicial hearing before the local land officers, whose decision is tantamount to a judgment binding both the government and the applicant in respect to the matter of settlement and improvement, and one which, inasmuch as no special right of appeal or review is given, is not subject to reexamination by the Commissioner of the General Land Office or the Secretary of the Interior, but is a final adjudication as to those matters. As a necessary result therefrom he contends that the order of the Commissioner directing a hearing on the

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charges made by the defendant, as well as the hearing before the local land officers in pursuance thereof, were all without authority and unavailing to disturb the conclusive force of the adjudication theretofore made. Upon the question which this contention presents the case depends, and to it, therefore, we direct our attention.

If there were no other provision in the statutes than that found in section 2263, the contention of the plaintiff would find support in the decisions of this court. By the act of May 29, 1830, 4 Stat. 420, c. 208, the right of preemption was given to certain settlers on the public lands. Section 3 was similar to section 2263, in that it required that prior to any entry "proof of settlement or improvement shall be made to the satisfaction of the register and receiver." In Lytle v. Arkansas, 9 How. 314, 333, it was held that their decision was conclusive upon the questions of settlement and improvement, the court saying: "The register and receiver were constituted, by the act, a tribunal to determine the rights of those who claimed preemptions under it. From their decision no appeal was given. If, therefore, they acted within their powers, as sanctioned by the Commissioner, and within the law, and the decision cannot be impeached on the ground of fraud or unfairness, it must be considered final."

Subsequently, and on July 4, 1836, 5 Stat. 107, c. 352, Congress, without any repeal of the act of 1830, passed an act to reorganize the General Land Office, the first section of which is as follows:

"That from and after the passage of this act, the executive duties now prescribed, or which may hereafter be prescribed by law, appertaining to the surveying and sale of the public lands of the United States, or in anyways respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the government of the United States, shack be subject to the supervision and control of the Commissioner of the General Land Office, under the direction of the President of the United States."

This section, so far as any question here is concerned, was

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substantially carried forward into the Revised Statutes, as section 453, and is still in force. Under this law the case of Barnard's Heirs v. Ashley's Heirs, 18 How. 43, 45, arose. It was there contended, in accordance with the prior cases, that the decision of the register and receiver was final and conclusive, but, the entries having been made on ex parte affidavits, the right of review by the Commissioner of the General Land Office was sustained, the court saying:

"The necessity of 'supervision and control,' vested in the Commissioner, acting under the direction of the President, is too manifest to require comment, further than to say that the facts found in this record show that nothing is more easily done than apparently to establish, by ex parte affidavits, cultivation and possession of particular quarter sections of land, when the fact is untrue. That the act of 1836 modifies the powers of registers and receivers to the extent of the Commissioner's action in the instances before us, we hold to be true. But if the construction of the act of 1836, ot this effect, were doubtful, the practice under it for nearly twenty years could not be disturbed without manifest impropriety.

"The case relied on, of Wilcox v. Jackson, 13 Pet. 511, was an ejectment suit, commenced in February, 1836; and as to the acts of the register and receiver, in allowing the entry in that case, the Commissioner had no power of supervision, such as was ...

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